Menu

Tax, Brexit, Politics.

Monthly Archives: September 2014

Road-testing my brave new world with a guest blog from Richard Murphy is a great way to flush out the bits of this project I have not thought through thought through insufficiently. One of the less attractive aspects of the tax debate – and I have touched upon it here – is how intelligent and thoughtful commentators so readily move from enthusiastic disagreement with one another’s views to enthusiastic criticism of one another’s personal qualities. This tendency does not illuminate discussions of policy issues: indeed, it makes sensible debate harder.

But what to do?

I could simply reject comments that attack the author – but that would be a pity because those comments often also contain intelligent points alongside the ad hominem attacks.

I could assume that such is a normal and healthy function of politically charged debate. But I don’t think it is.

Or I could edit the comment to remove the personal criticisms (excepting the unusual situation where the attack is clearly relevant to an assessment of the point made by the commentator).

I’m inclined to do the latter and to indicate with the words “[edited]” that I have done so. But I’d be very grateful for your views?

A further question is what to do about anonymous posters. These I am inclined to allow because there will be many – those engaged by large professional services firms or Govt departments – who will otherwise be unable to participate. But, again, what do you think?

When Jolyon asked me to contribute to a discussion in tax and self-employment I reflected on two things. The first is my own experience as a self-employed person, which given my own temperament was probably the only real option ever available to me. The second was the advice I have given to many hundreds (if not more) clients over many years on these two related issues. The result was that I realised, first, that the decision to be self employed has, in many cases, no relationship to tax at all. And, second, that because of the real number of variables involved in the tax decision making process when it comes to self-employment questions anyone who suggests that rational, tax based, decisions are taken is, at best deluding themselves either before the event (if they’re a professional adviser with a more expensive product to sell) or after the event if, by chance, savings worked out as hoped.

What the aim of this blog is, then, is to show just how many variables there really are in this decision process and to show how irrational it is to focus upon any of them for the vast majority of people (98% +) who earn less than £100,000 or so of taxable income each year (i.e. those for whom a focus on increasing net income might be of significantly greater use). In the process I also show that almost no Laffer effect could be reliably predicted for those with the option of self employment earning below £150,000 whilst those earning above that sum in reality face a choice of varying flat rates of tax, making Laffer implications impossible to measure independently of any choice on rate substitution, which is likely to have much bigger impact.

If it gets a bit technical on the way I don’t apologise. What I do instead suggest is that it really is time that we had professional advisers in this country who helped businesses make more and create more wealth instead of concentrating on a spurious goal of tax minimisation (which is, as I show, itself meaningless because what it means varies at different income levels, some of which will only be known well after the time when decisions need to be made). In other words, a debate about self employment and tax makes sense, but only in the context of considering all the variables that might be relevant in the equation that relates the issues. And by equation, I mean equation.

There are, of course, issues relating to the tax differentials between the two bases for taxing the income of people in the UK that might have impact on an individual’s tax decision making and on national tax yield but this is not, I suggest, a binary choice of either / or employed versus self employed status.

Firstly because this is not the only choice available: there is also the option of incorporating as an alternative mechanism for running a business which in turn gives rise to at least three alternative tax rates, being those on corporate retained income, corporate distributed income via dividends and corporate distributed income via salary, and these three options are all stated before the potential to divert income to others (not considered further here, but a very real factor in much tax planning at the point where it very definitely interfaces with tax avoidance) comes into play.

Secondly, tax payments and so yields are not just impacted by tax rates. The interaction between income and state social security payments, both taxed and untaxed, also has an impact on effective tax rates, whilst the capacity of the taxpayer to save in tax enhanced ways (ISAs, pensions, VCTs, etc) has to be taken into account, as too does the capacity of the chosen mechanism for declaring income to facilitate tax evasion, the offset of expenses incurred in relation to work related activity and even the opportunity for recategorising income as gains need to be taken into account.

Do all this and something like the following, simplified, equations, come into operation when considering effective tax rates, assuming that:

The question that then needs to be asked is what a person’s objectives might be in the above equations, and whether or not that objective remains consistent at all points in the income cycle or for all people at any point in that cycle.

It is also important to note that given the extensive range of variables and rates noted (even assuming national insurance and income tax rates are merged) and that the tax rate R is in in many (but not all) cases not an independent variable in this equation as it varies with the outcome of the expression (B-A-V-X-G), then the variables prioritised for ex ante decision making will almost certainly represent estimated data at the time a decision is taken since in practice in a real world situation the value of many (but not all) variables will only be known after decisions on tax status (even assuming that is unchallenged) have been made. It has to be stressed therefore that real world optimisation of any chosen outcome in this equation is nigh on impossible. Wise people should, and would, recognise this fact.

Despite this a rational economist (a term not necessarily synonymous with a wise person) would say that the decision a person should make is to maximise N, which is net income. But economists do not understand human beings, and many real people will for wholly rational reasons not do this, because they have other intellectual and emotional objectives (see The Courageous State) or simply do not prioritise income as the most important thing in life, and so income maximisation is not just a constrained opportunity for some (which it can be for others), it can also not be a choice in the sense that a person simply satisfices in this area.

In that case can it be assumed that another objective (either tax minimisation, or tax rate minimisation or marginal tax rate minimisation, and all could be set as goals) make sense? Maybe, but probably only if you are an accountant, lawyer or large corporation so remote from normal human objectives and conflicting interests that such a proxy for rational behaviour is even considered a priority. That said, precisely because so few accountants and lawyers do have much idea how to maximise income, even if that was a client’s actual objective (and I never in my practising career heard a client say it was) I am quite sure those professional people do adopt one of these tax related proxies for rationality instead, in the process hoping to hide their inability to offer business advice or even listen to their client’s stated preferences.

However, this may be quite irrational behaviour on these professional people’s part. The evidence for the importance of any of these tax related goals is limited. Well over 80% of all people working in the UK choose to be employed even though this is likely to increase their tax rates (R1 is greater than R2 which is greater than R4, for example, almost invariably and across most income ranges) and reduce opportunities for evasion, expense deduction and conversion of income into lower taxed gains. Either all of these people are economically crazy or there is something else at play here.

Even when self-employment is chosen as an option the likelihood that a person will risk tax minimisation (legally or illegally) is low. HMRC think that more than 40% of all self employed people under declare income on their tax returns. I believe, in addition, that the number making returns compared to those who should do so is significantly understated. But there still remain a substantial number who, nonetheless, do declare their income reasonably accurately whilst every year financial advisers suggest billions in available tax reliefs are not used by those who had opportunity to claim them. So even though tax advisers may think tax minimisation is a priority the reality is that the evidence does not support that fact.

This is not to say that tax does not impact on behaviour; it very clearly does. But, first of all, this evidence suggests that it may have relatively little impact on the decision to be self employed or not. In addition, the impact it may have might vary considerably depending on the values and priorities given to different variables in the equations noted at varying points in the income profile. So, for example, at some points the impact of the marginal tax rate (I could start expressing these variables mathematically but will resist the temptation to do so for risk of alienating most readers) will be very high. This might be especially true when there is a significant withdrawal of social security benefits (W). At other points this may arise because of the withdrawal of non-discretionary allowances (P). At other points the impact of rate substitution (R4 for R2, for example) might justify a reduction in net allowances (actually, in this case an increase in real costs with advisers, who do, I suggest, motivate much of this decision for that reason, by the way). And so on.

But with all these options, is the tax profession really able to advise rationally without either broadening its skill base or the adoption of bogus proxies for rationality (already noted). That is the first question?

The second question is whether we are in fact asking the right questions of tax design and our reaction to it when faced with all these options. That would have to be the subject of another blog. I suspect the answer is that at present we are simply failing to understand the real reasons for tax design when thinking on this issue. We are being blinkered in our focus on tax paid to the social dimensions of tax design.

And third, let me raise the question Jolyon Maugham has asked me to consider when writing this blog, which is where is Laffer in all this and, indeed, the issue of progressive taxation in all this? The only sensible answer I can give is, that to a very large degree, neither is anywhere to be seen at all. Firstly that is because much of the decision making that impacts the decisions noted has to be taken before facts, including income, are known. Therefore the impact of rates is assumed, and not known. Second it is because some residual factors, e.g. use of tax deductions for pensions can be used ex post to vary outcomes, and third, and most important, tax is just not that important to the vast majority of people, self employed or otherwise to go through all the necessary decision making processes (which might explain the appeal of evasion to some).

But perhaps, fourthly, and most importantly, over the income ranges where tax rates on earned income, however derived or recorded, vary significantly (i.e. at levels broadly speaking below £100,000 and definitely below £150,000) tax is not by a long way the most important factor in determining choice on employment versus self employment and so net income outcome. Work availability, career choice, social priorities, personal risk preference and a host of other factors will impact the decision much more significantly over this income range, not least because many within the income bracket of £150,000 or less will think they need most of their income to live on or to compulsorily save for a pension. Serious tax planning only happens at higher income brackets where more significant discretionary funds are available and in that case Laffer plays no effective part at all in the UK as rates are then flat, if albeit, substitutable (which is where planning comes into play, with most impact being the fact that R1 > R2 > R3, and this creates a regressive tax regime for many).

So what conclusion do I reach? There are several.

The first is that tax professionals over-emphasis the importance of tax to others.

The second is that tax optimisation, taking into consideration the variables I note (and there may well be others, but they only complicate matters further) requires, firstly, perfect knowledge of the future that none of us possess and secondly analytic ability to consider a a range of variables so complex most would not try to resolve the issue in any rational way.

Thirdly, in the face of these first two factors tax professionals try to sell pre-packaged solutions (e.g. incorporation as a route to national insurance minimisation) without ever being fully aware of its potential implications for the client whose interests they may not have properly noted. The chance that this is because such pre-packaged solutions enhance adviser income cannot be overlooked.

Fourth, if there is one variable designed, above all others to impact in N (net income) in the equations noted above it is Y (gross, pre taxed income) and it is time that the accountancy profession, in particular, reframed its thinking about how to help clients maximise this rather than minimise tax.

Fifth, if Laffer effects are so unlikely to be measurable in any scenario likely to be considered, why do we worry about them?

Sixth, given the substitutability of tax rates right across the income spectrum considered here (effectively from almost zero to infinity, if you wish) the chance that the Laffer effect will ever have impact at the rates available (bar short term shifting as seen with the 50p tax rate) is very low indeed, and to extrapolate from short term income shifting to long term behavioural impacts of tax is a step that no one should take.

Seventh, the impact of the integration of tax rates with tax spending (i.e. how rates are impacted by benefits and allowances and reliefs as well as indirect tax benefits of government spending) is always understated in a discussion of the sort I have attempted here. In reality tax and spend are part of an integrated whole process and not to be seen in isolation of each other.

Last, given all those factors, shouldn’t we realise that tax is not designed solely for revenue raising purposes but for any other social and economic reasons as well and that all we are looking at is the reaction to those various deliberate and often intended consequences of that design process with too limited a lens when we consider tax rates in isolation? Many people, from my experience, choose not to do so, thinking that tax is, as I said at the outset, of overstated importance in their decision making processes and that they really would prefer that their advisers take more nuanced approaches.

I started writing my Waiting for Godot blog with the objective of enhancing public understanding of, and improving the quality of public and political debate around, tax. Hence, the Blog’s title. I try to write thoughtful pieces, typically touching upon some tax issue in the public eye.

Despite being a small project it has enjoyed some successes. The FT has featured the blog several times and it is widely read by other journalists for the nationals. The Financial Secretary to the Treasury, David Gauke, has commented on a number of posts and has indicated to me that he means to continue to support the blog and its object. I am sure, too, that his talented shadow, Shabana Mahmood MP, is equally committed to the development of effective tax policy and public engagement in the field. As I have written elsewhere on this blog, a closer engagement with taxation is a particularly pressing need for the Labour Party, of which I am a member.

The tax community as a whole has been very supportive. With its assistance, this blog is frequently able to break stories across the tax technical and legal press. I am particularly grateful for the support of Richard Murphy, whose public position in the field is without parallel, and who has frequently directed his considerable following to blog posts featured here. Richard knows – for his support comes despite the fact that much of the analysis here he would disagree with – the value of the project and of high quality debate.

I have written about the need for and benefits of a more meaningful engagement with the public by HM Revenue & Customs. What that engagement does not look like is the occasional Treasury Select Committee, or other parliamentary committee, appearance. What it does is real engagement with the media. It has been intimated to me, in high level discussions with HMRC, that there is growing internal recognition of the need for the department to become more outward facing. This, if it eventuates in a meaningful way, could be a transformational development not merely for the department but for public engagement in the field.

It’s always been clear to me that the project is too big for one person. Whilst I care enormously about it, I struggle to balance it with the demands of my practice. And I am also keenly aware of my own limitations: there are many important aspects of the field that I lack the technical capacity to address, at least in the educated and reflective style that I strive for.

To that end, I have in recent days asked a number of the leading figures in the tax world – and commentators in associated fields who I admire – to contribute thought pieces to this blog. These requests have been almost universally accepted. Pieces will appear in the coming days and weeks. And I will be very proud to host them.

One writer, of whom I am a particular fan and who has been especially supportive, has had to decline. It can be difficult for large professional services firms to write about tax policy. Their broad set of commercial interests, and duties, need to be carefully considered before taking a public position outside the range of a narrow tax technical analysis. But I hope that refusal does not signal a broader unwillingness to engage. It is those firms who harbour many or most of the leading technicians. And it is those firms alone that can deliver the value that comes from a breadth of perspective.

I hope those in the field who I have not – or not yet – approached might come to regard Waiting for Godot (www.waitingfortax.com) as a natural outlet for a particular kind of piece. An educated, reflective, non-partisan writing about tax. What might our system look like? How might we get there? Why are we where we are? What are the impediments to improvement? Not as an alternative to writing for the established technical journals in the field – who exist to examine tax purely from a technical perspective. And not for pieces that advance commercial or political interests. But for those that could advance the public interest.

UKIP has today floated the idea of increasing VAT on luxury goods to 25%.

But in an amusing – if unsurprising – irony, UKIP doesn’t appear to have bothered to read Council Directive (2006/79/EC) which provides (see Articles 96 and 98) that Member States may only levy a standard rate of VAT and (in certain prescribed circumstances) lower rates. It’s simply not open to UKIP to impose a higher rate of VAT. Hungary has tried this in the past – but failed. “Investigating the feasibility” seems to mean, in UKIP speak, something less than a quick google search.

Last night I issued a heartfelt plea for the Labour Party to bring more tax expertise into the party. Today I can demonstrate why.

In his conference speech yesterday Ed Miliband promised extra spending on the NHS which would be funded in part from an extra £1bn yield from tax avoidance. Today some detail of where that £1bn would come from was given. £650m of that sum is to come, according to briefings and a Press Release, from “prevent[ing] so-called ‘Umbrella Companies’ being used to avoid tax and National Insurance by exploiting expenses rules.”

The way in which so-called umbrella companies “exploit” expenses rules is by seeking dispensations under section 65 of the Income Tax (Earnings and Pensions) Act 2003 from subjecting payments on account of expenses to tax. But they only get dispensations where HMRC agree the expenses are not subject to tax. In other words, where there is no exploitation of the expenses rules.

More likely, the £650m is the projected yield on a measure which has the effect of deeming many or most self employed workers in the construction industry to be employees. As I explain here, the effective rate of taxes on income for self-employed workers is materially lower than those for employed workers. So deeming some of those self-employed workers to be employees for tax purposes would produce a yield.

The measure referred to above was originally mooted by the last Labour Government in 2009. The cost to the exchequer in loss of tax and NICs from those workers (characterised as “falsely self-employed”) was estimated in 2010 to be £350m. But the measure fell away on the change in Government.

Then, in the Finance Act 2014, the present Government introduced measures to tackle false self employment in the construction industry. Those measures had a projected yield of some £520m in 2014/15.

So from a pool of expected cost to the fisc in 2010 of £350m pa the Conservatives propose drawing a projected yield of £520m pa (a figure I said at the time I did not believe would be achieved) and now Labour proposes drawing from that same pool a FURTHER £650m pa: a total of £1.17bn pa. Of course, that pool might have grown – but then again one never yields all of the ‘pool’.

You do the math.

Postscript. The Financial Secretary to the Treasury, commenting on this blog, has pointed out, correctly, here that the Conservatives were dipping into a pool bigger than the construction industry. In line with my policy of correcting my errors, I should state that I had forgotten that fact. But it is worth considering the consequences.

The Summary of Impacts for the Finance Act 2014 measures states that the impact is “expected to be focused on the construction sector” and then goes on to give a figure of 200,000 of 250,000 workers expected to be caught. One might, assuming equal distribution of impacts in the construction and non-construction sectors, reduce the Conservative ‘dip’ from the £350m pool by 20% to £416m. That would mean Labour was assuming an aggregate dip from a £350m pool of £1.066b rather than £1.17b. In other words, the adjustment makes Labour’s projected dip slightly less unrealistic.

Whilst my own writings on this blog are – at least so far as I can make them – politically neutral, I make no secret of the fact that I am a Labour Party supporter. In light of Ed Miliband’s pledge to raise £1bn from tax avoidance, I thought I would republish (following) an article I wrote for Progress Magazine in May of this year. I haven’t touched it, but it might be worth me adding a couple of further thoughts.

On personal tax avoidance, in my opinion, the heavy lifting is done. Like it or not, this is credit in good part to the technical capacity brought to the role by an excellent Financial Secretary to the Treasury, David Gauke. I do not see scope for significant further receipts. On corporate tax avoidance, the ability of any Government to act is a function in large part of matters outside its control. We must await development and implementation of the OECD’s BEPS project. The battleground, now, is moving to evasion. On this front, I think the Conservatives’ record is less compelling. Tackling evasion is inevitably manpower heavy and I cannot see how HMRC’s capacity to close the tax gap in that field can have survived the significant cuts in HMRC staffing levels.

Labour needs to get technical on tax

You are the finance director of a large enterprise. Revenues are in the tens of billions, so obviously you pay attention to your costs. But you are also keenly interested in maximising your revenues. Right? I ask because we in Labour are not – hardly at all – interested in our revenues. As a party we debate endlessly how to spend, understandably, because spending is the end, tax the mere means. But you would still expect us to have some interest in maximising the means the better to achieve our ends.

Where we do talk about tax, the discussion concerns matters of ideological interest only. Should we raise the top rate of income tax? Your finance director cares not. She knows it will not make any material difference to her bottom line. Do it or don’t do it. It makes no difference to her. On the mechanics of how to tax, and on the detail of how to improve collection, we are almost completely silent.

The other parties talk about tax; they are interested in their revenues, the Tories especially. Ideologically, of course, they levy less, but they are skilled at maximising the rake from what they do levy. The general anti-avoidance rule, accelerated payment notices, strict criminal liability for undisclosed monies held offshore, recovery of unpaid taxes direct from bank accounts – all of these are genuinely radical measures introduced by the government and ones that Labour could have introduced, but did not.

There are a number of competing accounts of why this is so. The Tories are elected to government in times of austerity. And it is in times of austerity – when the state needs money most – that the political focus is on tax. In times of boom all anyone is interested in is how to spend the money. Another explanation – ‘stealth taxes’ being the latest of many examples – is that Labour focuses on increasing the tax base rather than reducing avoidance. Because, ideologically, we are the party that believes in levying tax we can let the collection take care of itself.

Although there is, no doubt, truth in these accounts, we cannot ignore a third. Culturally, we are not the party of money. We did not grow up with family wealth to shepherd. Outwitting the taxman is not conversation at our breakfast tables. Moreover, our parliamentarians, by and large, did not work as tax advisers before becoming members of parliament. A talented party member recently said to me that it is difficult to think of an occupation less suited than his to seeking nomination as an MP. He is a partner in the tax department of a City law firm.

The Tory selectorate is less squeamish. Tax advisers and accountants routinely become Treasury ministers. They bring with them a detailed knowledge of the craft of taxation, and Conservative tax policy is immeasurably the stronger for it.

We, on the other hand, make play with moral outrage. We give ourselves over to the cheerleaders at the public accounts committee – full of sound and fury but signifying nothing – without actually getting anything done. Our policy teams are overly reliant on briefings from the trade unions who, like everyone else, have axes to grind. But, more importantly, they do not have access to the right minds, to the leading technicians. It is Cary Grant they asked to catch a thief, not the constabulary.

To improve our effectiveness in government we must focus on tax as a means to an end rather than an end unto itself: quantifying the yield from raising the top rate of income tax should be the question on everyone’s lips, not the rhetorical flourish of whether the rich should pay their share. The fiscal carpet-bombing of increasing the base must be jettisoned for the economically efficient precision strikes of taxes which are closely drawn and effectively policed. We need unembarrassedly to welcome tax technocrats into our midst. With moral fury alone we cannot get the job done.

If you’re going to avoid tax, and at some stage in your life you probably will, you’re likely to do it with your earned income. The reasons for this are pretty clear. Most people have earned income, the difference between tax rates on the employed and self-employed is huge, and the line separating those statuses is both blurred and shorn of logic and economic principle.

Meanwhile, issues around employment and self-employment have leapt to the head of the policy queue. The Office for Tax Simplification has started a review into employment status; the Royal Society of the Arts continues its wide ranging self-employment project; the Office for National Statistics has published a short but influential report noting both that self-employment was at its highest level in forty years and that average earnings from self-employment had fallen 22% since 2008/09; the think tank Centre Forum have described the difference in rates as “without compelling reason” and the leading tax academic Professor Judith Freedman has declared it a “crude tax subsidy” which we should “stop“. On the political front the Labour Party appears publicly to have committed to, in effect, abolishing sole trader self-employment in the construction industry.

What I mean to do in a series of blogs over the coming months is ask some questions about the differing tax treatments of employment and self-employment. What are the differences? How are they justified? How are they arbitraged? Why do employees and employers behave as they do? How does fiscal policy respond to these challenges? And does it respond well?

Where I get stuff wrong, and I will, please tell me. I’ll put the record straight and I’ll try to do it with good grace. If you’d like to contribute to the series, please let me know; the best discussion is a heterodox one.

However, the starting point is probably to observe that, and how, employment and self-employment are taxed differently.

For the sake of simplicity, I consider the situation of an individual, I round to the nearest ’00, I aggregate all taxes on earned income (so not just income tax but also both employers’ and employees’ national insurance contributions. These are, if you like, roses by other names), and I assume no deductible expenditure.

Looked at in this way (and focusing on the position of the typical worker with no other income) the total tax burden on different slices of income (in 2014/15) for the employed and the self-employed (in parentheses) is as follows:

0-8,000 – 0% (0%)

8,000-10,000 – 22.7% (9%)

10,000-41,900 – 40.2% (29%)

41,900-100,000 – 49% (42%)

100,000-120,000 – 66.6% (62%)*

120,000-150,000 – 49% (42%)

150,000+ – 53.4% (47%)

*This band is attributable to the removal of the nil rate band by £1 for every £2 one earns over £100,000.

A few points will immediately be gleaned from the above:

(1) if you were designing a tax system you wouldn’t start here;

(2) no one would describe our rates as smoothly progressive;

(3) no one could describe our rates as particularly progressive;

(4) there’s a huge difference between rates of tax on employed and self-employed income.